jury, as distinguished from mere matters of form or procedure. . . ." [citations omitted] Id. at 156.8

This distinction is further illustrated in Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945). There the Supreme Court upheld a statute which extended the statute of limitations in a pending suit thereby frustrating the defendant's effort to dismiss the action. After noting that "[n]o one has a vested right in any given mode of procedure," the Court disposed of the case on the ground primarily that the protections afforded by the statutes of limitation have "never been regarded as what now is called a fundamental right." Id. at 314. The right to trial by jury, being guaranteed by the Constitution, is undoubtedly a fundamental right."

In the absence of any directly controlling judicial precedent, we cannot conclude with very much confidence that this proposed amendment would, or would not, survive a due process challenge. The cases do make plain, however, that what is being dissolved here is an important substantive right. That being the case, the inquiry will focus on what public purposes are being served by its abrogation. The considerations that support the bar to punitive damages and that support the substitution of the Government as defendant in the stead of the individual government employee would seem to have little relevance to the jury trial issue.

It is worth noting that in other related contexts Congress has declined to apply the jury trial bar to pending claims. For instance, the Federal Driver's Act, 28 U.S.C. § 2679 (b-e), which substituted the Government as defendant in claims growing out of motor vehicle incidents contained a specific provision applying it only prospectively. Pub. L. No. 87-258, § 2.

Likewise, the statute which substituted the Government as defendant in cases growing out of alleged torts by armed forces medical personnel, was limited by Congress to prospective application. Pub. L. No. 94-464, 10 U.S.C.A. § 1089. The same approach was adopted with respect to claims against Veterans Administration medical personnel. Pub. L. No. 89-506, 38 U.S.C. § 4611.10 Given this cautious history, and given the analysis suggested by the cases, it would seem almost certain that the jury trial question would be a subject of litigation. Absent some strong legislative rationale supporting application of the amendment to pending cases, we would recommend against supporting language that would purport to bar jury trials in those cases in which the right has attached.

The central point is that the bill as presently drafted contemplates taking away a jury trial right in particular cases in which a plaintiff has elected to pursue that right, and we know of no satisfactory way of supporting a

8 See also Baltimore & Carolina Line Inc. v. Redman, 295 U.S. 654, 657 (1934). The cases indicate that courts shield certain basic rights from retroactive infringement. As stated in Carr v. United States, 422 F.2d 1007 (4th Cir. 1970), questions of constitutional dimension may be raised by retroactive application of a law to pending claims. Carr was an action for personal injuries involving federal employees. The court held that the Federal Drivers Act, 28 U.S.C. § 2679(b-e) abrogated a federal employers common law action against a Government driver acting within the scope of his employment. The court further upheld the constitutionality of this Act even though it did not provide the plaintiff with some new benefit as a quid pro duo. However, the court was careful to distinguish its holding from Richmond Screw Anchor Co. v. United States, 275 U.S. 331 (1928) by stating:

There the Supreme Court dealt with statutes whose combined effect deprived a patent owner of his right to sue for infringement, but the patent in that case had been issued prior to the enactment of the relevant legislation. There was, therefore, a vested right in being which was sought to be abrogated. By contrast, here the accident occurred over four years after the enactment of the Drivers Act. Therefore, under Silver, Carr had no interest entitled to constitutional protection. Id. at 1010-11.

Although the precise issue in Carr was whether the "just compensation" provision of the Fifth Amendment was violated, the court focused on whether Carr had an "interest entitled to constitutional protection" which came into being before the passage of the Drivers Act. 10 But see Pub. L. No. 94-350. 22 U.S.C.A. § 817(a) (State Department medical personnel) and Pub. L. No. 91-623, 42 U.S.C. 233 (Public Health Service medical personnel). Neither of these provisions are expressly limited in their application to prospective claims. However, we were orally advised by Mr. K. E. Malmborg, Assistant Legal Advisor for Management, Department of State, that he is not aware of any attempt to apply Pub. L. 94-350 to claims pending at the time of the enactment of that law. At this writing we have not received a response from HEW regarding a similar inquiry of the foregoing provisions mandating that they be applied to pending claims. Further, there is no discussion in the legislative history of either of these provisions to indicate that pending claims would be abolished.

congressional judgment that substitutes some other mechanism in the place of that right. It is for that reason that we have concluded that there must be some very strong basis for any action that would abrogate the right in pending cases if there is to be any chance of success against constitutional challenge.

With the matter in this posture, we see essentially three alternatives:

(1) Amend the bill to provide that plaintiffs in pending cases (who have either already elected a jury trial or who have not yet waived that opportunity) may elect either to proceed against the individual and to enjoy their jury trial prerogative or to proceed against the United States as a substituted defendant without a jury trial."

(2) Substitute the United States as defendant in all cases covered by the amendment, but allow the plaintiff to retain his jury trial right. This would, in essence, constitute a limited consent by the United States to a jury trial action against itself.

(3) Carve out pending cases in which jury trials have been requested and allow the plaintiffs to proceed as they are at present against the defendant. individually, but provide that any judgment against him shall be indemnified by the Government. Presumably, although we have not researched the issue, the fact of indemnification could be withheld from the jury.

CONCLUSION

For the reasons stated we believe that S. 2117 does raise a substantial constitutional question, and one that we would resolve against the constitutionality of the bill as presently drafted. The selection of an alternative is essentially a policy matter and we lack the knowledge base to render very much in the way of useful advice on that issue.

LARRY A. HAMMOND,
Deputy Assistant Attorney General,
Office of Legal Counsel.

11 It should be noted that for the reasons set forth above, we think that in either event the bill could abolish the right to seek punitive damages. Stripped of the punitive damage benefit, it seems reasonable to assume that most plaintiffs would prefer to litigate against the more "financially responsible" party.

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vii. Civil Remedies Should Be Expanded

Recommendation 91 expresses the Committee's concern for establishing a legislative scheme which will afford effective redress to people who are injured by improper federal intelligence activity. The recommended provisions for civil remedies are also intended to deter improper intelligence activity without restricting the sound exercise of discretion by intelligence officers at headquarters or in the field.

As the Committee's investigation has shown, many Americans have suffered injuries from domestic intelligence activity, ranging from deprivation of constitutional rights of privacy and free speech to the loss of a job or professional standing, break-up of a marriage, and impairment of physical or mental health. But the extent, if any, to

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which an injured citizen can seek relief-either monetary or injunctive from the government or from an individual intelligence officer is far from clear under the present state of the law.

One major disparity in the current state of the law is that, under the Reconstruction era Civil Rights Act of 1871, the deprivation of constitutional rights by an officer or agent of a state government provides the basis for a suit to redress the injury incurred; " but there is no statute which extends the same remedies for identical injuries when they are caused by a federal officer.

In the landmark Bivens case, the Supreme Court held that a federal officer could be sued for money damages for violating a citizen's Fourth Amendment rights. Whether monetary damages can be obtained for violation of other constitutional rights by federal officers remains unclear.

While we believe that any citizen with a substantial and specific claim to injury from intelligence activity should have standing to sue, the Committee is aware of the need for judicial protection against legal claims which amount to harassment or distraction of government officials, disruption of legitimate investigations, and wasteful expenditure of government resources. We also seek to ensure that the creation of a civil remedy for aggrieved persons does not impinge upon the proper exercise of discretion by federal officials.

Therefore, we recommend that where a government official-as opposed to the government itself-acted in good faith and with the reasonable belief that his conduct was lawful, he should have an affirmative defense to a suit for damages brought under the proposed statute. To tighten the system of accountability and control of domestic intelligence activity, the Committee proposes that this defense be structured to encourage intelligence officers to obtain written authorization for questionable activities and to seek legal advice about them.88

To avoid penalizing federal officers and agents for the exercise of discretion, the Committee believes that the government should indemnify their attorney fees and reasonable litigation costs when they are held not to be liable. To avoid burdening the taxpayers for the deliberate misconduct of intelligence officers and agents, we believe the government should be able to seek reimbursement from those who willfully and knowingly violate statutory charters or the Constitution.

Furthermore, we believe that the courts will be able to fashion discovery procedures, including inspection of material in chambers, and to issue orders as the interests of justice require, to allow plaintiffs with substantial claims to uncover enough factual material to argue their case, while protecting the secrecy of governmental information in which there is a legitimate security interest.

The Committee recommends that a legislative scheme of civil remedies for the victims of intelligence activity be established along the

"42 U.S.C. 1983.

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

One means of structuring such a defense would be to create a rebuttable presumption that an individual defendant acted so as to avail himself of this defense when he proves that he acted in good faith reliance upon : (1) a written order or directive by a government officer empowered to authorize him to take action; or (2) a written assurance by an appropriate legal officer that his action is lawful.